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ELECTORAL COUPS: A rough guide to winning elections in Kenya

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The Supreme Court’s courageous act of annulling Kenya’s August 8, 2017 presidential election seems to have plunged Kenya into a deep political crisis, especially after the withdrawal of Raila Odinga and Kalonzo Musyoka from the October 26 re-run. However, if the court’s decision compounded Kenya’s political crisis, it was not so much because it radically departed from Africa’s well-thumped jurisprudence on presidential election disputes. Rather, it was because the court inadvertently saddled Kenyans with an electoral coup — something that neither a resolute and courageous court nor a beleaguered and isolated opposition could contain, singly or jointly.

The Supreme Court judges and a renegade commissioner blew the cover off the Independent Electoral and Boundaries Commission (IEBC). The strategically located co-conspirators within the IEBC were identified and named, but unashamedly stayed put. The IEBC threatened to revert to its factory settings.

Ominous indicators

The Supreme Court expected nothing but a fresh election held in strict accordance with the constitution and the law. However, barring a last-minute court intervention out of the many cases now before the judges of High Court and the Supreme Court, Kenya looked set for a coup.

Several ominous indicators pointed to the possibility of a coup: Externally, the contested presidential election re-run on 26 October was notably and explicitly endorsed by the United Nations, the African Election Observer Group, and the US-led “international community”, which downplayed fears expressed by the IEBC’s commissioner Roselyne Akombe and its chairman Wafula Chebukati that the IEBC, as currently constituted, could not hold a credible election. These officials told the world that the IEBC was compromised and was held captive by four commissioners, some members of staff and the Chief Executive Officer, who opposed the chairman’s proposed reforms.

Internally, signs that a coup was in the offing included the military-like poses of the Jubilee party’s leaders, who were seen wearing red berets and military fatigues (contrary to the law) in readiness to salute any order given by their commander. The subliminal message of this militant posturing was not lost on the Kenyan public.

In a show of military might, the government sent the paramilitary and police mostly to opposition strongholds of Western Kenya, Coast, Nairobi and parts of the Rift Valley. There were also reports of militia groups allied to the Jubilee party taking a new form of Nthenge oaths in Nairobi’s Lucky Summer estate to the chants of “thaiya thai thai”.

Internally, signs that a coup was in the offing included the military-like poses of the Jubilee party’s leaders, who were seen wearing red berets and military fatigues (contrary to the law) in readiness to salute any order given by their commander.

On its part, the opposition withdrew from the presidential election and vowed that there would be no election on 26 October. It violently disrupted IEBC preparations for the new election in the counties of Siaya, Homa Bay, Migori and Kisumu. It remained intransigent, bloodied but unbowed, mobilised and charged, but isolated internationally.

The counter-coup

The C-word (coup) has been used by some Kenyans to define the significance of the 1 September 2017 Supreme Court verdict nullifying the 8 August election. None other than Uhuru Kenyatta, the would-be principal beneficiary of the IEBC’s “illegalities and irregularities”, rattled and rankled by the court’s decision, called the court’s verdict a judicial coup. He was echoing the dissenting Supreme Court judge Njoki Ndungu’s verdict in which she cast aspersions on the integrity of the majority of her fellow Supreme Court judges and of the judicial process that led to the nullification of the election.

However, Uhuru’s charge of a judicial coup is a non-starter. It lacks the watermarks of one. There is no credible evidence that by annulling the presidential results the majority in the Supreme Court bench acted in haste, exercised their powers in an extra-constitutional or illegal manner, or declared an underserving candidate the winner of the 2017 presidential election – all backed by the threat or use of violence, against anyone and everyone resisting such a plot.

Uhuru’s charge of a judicial coup, therefore, served to divert attention from what truly imperils Kenya’s democracy: electoral coups.

An electoral coup is a fairly recent phenomenon but has striking similarities to a military coup d’état. In both electoral and military coups, the conspirators identify the strategic locus or loci of state power, which they attempt to infiltrate and control. They then use these centres of power to acquire the remaining levers of state machinery, and eventually the state.

But before we get to that point, we must ask whether the concept of a coup hold the key to understanding the complexity of Kenya’s electoral politics at this juncture? Technically no, because in a classic coup d’état, the state is overthrown (usually through the use of violence) by a rebel or military group. In this case, it was the state that engineered a coup to subvert or overthrow state institutions, particularly the electoral commission. So if the Supreme Court ruling was a judicial coup, then the 26 October election could be described as an electoral coup, or a counter-coup that sought to defy or invalidate the Supreme Court decision.

An electoral coup is a fairly recent phenomenon but has striking similarities to a military coup d’état. In both electoral and military coups, the conspirators identify the strategic locus or loci of state power, which they attempt to infiltrate and control. They then use these centres of power to acquire the remaining levers of state machinery, and eventually the state. All coups succeed or fail to the extent that they are able to create and sustain a perception of victory once they have seized a strategic locus of state power.

The coup plotters deploy threat or use of violence against those who may resist them, and carefully identify their friends as well as their enemies and opponents whose capacity for resistance must be sabotaged or neutered sequentially or simultaneously. Some of these enemies must be targeted through a long-term process, but others must be taken by surprise on the day of the coup.

Electoral coups also adopt military warfare techniques, such as the use of psychological operation tactics (pys-ops) and the use of civic spaces of democracy, such as Kenya’s oligopolistic “mainstream” media, PR agencies and social media. These tactics are used to create and sustain a perception of the incumbent’s inevitable victory or invincibility, to fan and exploit citizens’ fear of political violence, to intimidate the opposition, to sustain a façade of the independence of the electoral commission, and to dominate the framing of the political contest and narratives of victory and loss. Electoral coups can be bloody or bloodless.

Kenya’s experience in its last three elections suggests that electoral coups are made up of these elements and more. The preferred locus of execution of these coups has been the electoral management body, the Supreme Court, or both. It usually harangues the opposition to go to court, not for justice, but as means of obtaining judicial imprimatur for its politically cathartic and legitimating value.

Military coups

Pictures of army tanks rolling down the city’s main street, soldiers in military fatigues with belts of bullets strapped across their chests patrolling the streets or standing guard around iconic public buildings within a capital city, the seizure and control of the state-owned national radio and television station by these forces, the continuous broadcasting of political martial music and “revolutionary” messages by “a redemption council” or “a revolutionary council” – these images are usually associated with military coup d’états, which generally set an organised army unit or units against the rest of the armed forces and society, which they dominate both by the threat or use of force, superior organisational ability, weaponry and the capacity to outlast any resistance.

In a paper published by the Albert Einstein Institution, Gene Sharp and Bruce Jenkins define a coup as “a rapid seizure of physical and political control of the state apparatuses by illegal action of a conspiratorial group backed by the threat or use of violence.” This speaks to the surprise, speed, means and the immediate strategic targets of coup makers.

However, there is more to the making of military or other types of coups. A military coup d’état is typically the ultimate pitched battle, asymmetrical warfare between the coup plotters who command an army or units of armed formations, on the one hand, and the armed formations of the state that are not party to the plot, on the other. The state could or could not be aided in its resistance to this power grab by civic institutions and unarmed but organised political groups, as well as rag-tag militia.

Competitive authoritarian regimes are states whose politics is defined by an odd mix of nascent liberal democracy and authoritarian carry-overs from one-party rule. These regimes are torn between democracy (with its strong local support base) and declining international support of its yesteryear benefactors (the West) who are playing catch-up with the rising authoritarian pull of a Chinese debt-bondage driven by a multipolar global system.

Coups are executed with speed, but take a long time to plan. They involve the identification, infiltration and control of strategic loci of state power. Usually, coup makers recruit key persons in charge of critical functions at strategic loci of state power, people whose simultaneous or separate but sequential acts, under the instruction of the coup plotters, enable the coup makers to take control of a strategic centre of state power, and use that to take control of the rest of the state machinery and to impose their rule on a people.

Coups in competitive authoritarian regimes

Competitive authoritarian regimes are states whose politics is defined by an odd mix of nascent liberal democracy and authoritarian carry-overs from one-party rule. These regimes are torn between democracy (with its strong local support base) and declining international support of its yesteryear benefactors (the West) who are playing catch-up with the rising authoritarian pull of a Chinese debt-bondage driven by a multipolar global system. Their politics is asymmetrical warfare, neither wholly determined by brute force (by the state security apparatus, state-sanctioned militia or opposition sanctioned militia) nor by civic actions, but by a mix of both, especially during general elections. Courts play an important role in recalibrating the balance of forces in this warfare.

Although military tanks on the streets of a capital city represent the dominant image of a coup d’état, there can be many other types of coups, defined by the locus of their execution, as there are centrally located levers of state power in a competitive authoritarian regime. The conspirators can seize these strategically-placed levers of state power and use them to control the rest of the state machinery.

In a competitive authoritarian regime such as Kenya, it is these loci of power – defined by highly centralised bureaucratic structures and decision making in the hands of a few – that are the prized targets of coup makers. The IEBC’s national tallying centre and the Supreme Court of Kenya fall into this category.

Elections are a perilous moment for such regimes. They present the ruling party with a dilemma: how to stage electoral contests that do not threaten the status quo but lend the regime a veneer of democratic legitimacy. Such democratic charades have great purchasing power among the self-declared “international community” (Western powers), especially in a world where political stability, as opposed to democratic niceties, is gaining currency.

Elections are anxious moments because they are a time when state power rests and shifts from one temporary locus to the other – from the substantive holder of the office of the presidency to the electoral commission or the judiciary. The electoral commission or the judiciary act as temporary custodians of state power, with enormous fiduciary powers. As the interim custodians of both state power and the people’s will, the chairman of the electoral commission or Supreme Court judges, acting singly or jointly, can declare any presidential candidate a winner according or contrary to the democratic will of the voters, the constitution and electoral laws.

Several acts, sequentially executed, in the run-up to and after the last three general elections in Kenya, seem to suggest that electoral coups have become the preferred mode of grabbing state power under the guise of a competitive election.

What’s more, an electoral moment throws up multiple strategic vulnerabilities: the counting, tallying and declaration of election results and the resolution of any dispute arising from such an exercise. Any of these loci of state power can be seized and used to acquire the rest of the state machinery. Or a combination of all these points can be captured and used to acquire the rest.

Kenya’s electoral coups

Several acts, sequentially executed, in the run-up to and after the last three general elections in Kenya, seem to suggest that electoral coups have become the preferred mode of grabbing state power under the guise of a competitive election. These coups are executed through a process of infiltration, seizure and control of the electoral management body to produce preferred outcomes and through the use of a cross-section of state security to put down any resistance.

Since 2007, Kenya has experienced this form of power grab, partly made possible by the electoral management body’s acts of “human error, fatigue, and technological failure” – which always happen only in favour of the incumbent or the incumbent’s preferred candidates – and by the cynical invocation or use of the judicial system to legitimise such a power grab.

The 2007 Kibaki coup

Mwai Kibaki’s 2007 power grab surprised many, not least the Kriegler Commission, which noted the strange circumstances surrounding the final announcement of the results of the presidential election and the low-key swearing-in ceremony at State House on the evening of 30 December 2007, a day before the official expiry of Kibaki’s first term in office.

Protracted political stalemate at the Kenyatta International Conference Centre (KICC), the national tallying centre, could have spilled over into a crisis of legitimacy for the incumbent, denying Kibaki the strategic advantage of bargaining with his opponent from an advantaged position as the commander-in-chief of the all the armed forces who could exercise the full powers of the office of the president.

Kibaki’s 2007 “victory” out of a muddled electoral process was a coup; it relied on sequential or simultaneous acts of infiltration and control of a strategic locus of state power (the ECK) and used the threat of violence to neutralise resistance.

Many Kenyans were surprised by the sight of the “Ninja turtles” that descended on the KICC just before the results were announced. These police officers – dubbed “Ninja turtles” by Kenyans because of their striking resemblance to the fictional Teenage Mutant Ninja Turtle cartoon characters – are mostly from the Rapid Deployment Unit of the Administration Police, the police unit that is under the command of the Minister of Internal Security and which had grown spectacularly in strength, capability and numbers during the Kibaki regime.

The political significance of the chaos at KICC – with the chairman of the electoral commission, Samuel Kivuitu, literally under siege – the hasty swearing-in of Kibaki at dusk and the growth in numbers and strength of a civilian-commanded police force under a regime that ostensibly upheld citizens’ right to protest and picket was not lost on the majority of Kenyans.

Similarly, the political significance of the lack of preparedness of all the armed forces, except the military, and the lack of co-ordination among security chiefs at various levels (district, provincial and national) was not lost on the Waki Commission that was set up to look into the violence that erupted after that disputed election.

These acts, coupled with the cordoning off of the KICC by the General Service Unit (GSU), the revelation that the Electoral Commission of Kenya (ECK) had been infiltrated by the National Intelligence Service and rogue returning officers, and the opaque system of counting and tallying results at the KICC, suggested a coup plot via the electoral locus.

Kibaki’s 2007 “victory” out of a muddled electoral process was a coup; it relied on sequential or simultaneous acts of infiltration and control of a strategic locus of state power (the ECK) and used the threat of violence to neutralise resistance. It deployed police around the main entrances and exits of urban slums, cordoned off public spaces, such as Uhuru Park, for months on end and restricted public broadcasts to weaken the opposition’s ability to organise or mobilise protests against the regime.

The successful execution of a coup requires the active participation of some armed formations that have the capability to repress any anticipated forms of armed or civilian resistance. It also requires “neutral” or “professional” police and military forces – an unprepared police force, security committees that didn’t meet, and a prepared but professional army, which maintains its neutrality while the coup plot unfolds. Such a coup can gain legitimacy through the tacit or explicit approval of the international community, particularly countries whose military bases are located in Kenya, the UN headquarters in Nairobi, and strategic countries that Kenya relies on for military support.

Simply put, a Kibaki-style coup plot succeeds when it faces no credible or active internal threat from any other armed formation, except the unarmed civilian mobs of protestors or gangs armed with bows and arrows, who can easily be contained by the police and the paramilitary under the guise of maintaining law and order.

Kenya’s first successful electoral coup in 2007 was bloody. But if the securocrats and the Kibaki-aligned political elite hewed Kenya’s body politic “like a carcass fit for the hounds,” in 2007, then in 2013 they “carved it as a dish fit for the gods” with peace campaigns and “accept and move on,” messages.

How the Kibaki coup was executed and the resistance against it has informed the subsequent attempts. Though successful, Kibaki’s 2007 seizure of state power was seen to have had several weaknesses, which cost him the complete control of state power (a “nusu mkate” coalition government) and endangered real or perceived Kibaki supporters in opposition strongholds, especially in the Rift Valley. The resistance against it, nationally and internationally, nearly consumed the regime’s success.

Importantly, Kibaki’s plot had failed to create a perception of victory. His Party of National Unity’s campaign was seen as lethargic and as lacking an effective communication strategy: it failed to manage public perception (opinion polls) and to trumpet Kibaki’s economic achievements. Even its successful attempts to rope in top editors who authored “Save Our Country’ headlines was seen as a little too late.

Kenya’s 2013 electoral experience was sublime. The electoral process was a well-designed psychological operation to create and sustain a perception of victory, coupled with mediated reportage and embedded intellectuals, as well as co-option of a cross-section of the civil society groups to preach peace.

Similarly, its diplomacy was wanting and no match for the diplomatic charm offensive of some of Kenya’s astute human rights and democracy activists who had contacts in high places in the West. It strengthened the opposition, the pro-democracy forces and the reform agenda against the regime. Importantly, it allowed too many concessions, especially the enactment of the 2010 Constitution of Kenya.

The 2013 digital coup

The evil genius of the Jubilee party’s 2013 electoral coup was to turn Kibaki’s coup on its head: rewrite the old military coup d’état manual and distill out of it evil lessons with which to subvert Kenya’s democratic processes and institutions.

Kenya’s 2013 electoral experience was sublime. The electoral process was a well-designed psychological operation to create and sustain a perception of victory, coupled with mediated reportage and embedded intellectuals, as well as co-option of a cross-section of the civil society groups to preach peace.

Critical media coverage was disarmed through peace journalism. Media coverage critical of the IEBC was equated with inciting political violence. Claims by the opposition, which deserved a critical look, were brushed aside as acts of incitement. Jubilee ran a glitzy and energetic campaign. Its victory was prophesised by the talk of a “tyranny of numbers” that assured a win for the UhuRuto alliance.

 In 2013, the locus of the electoral machinery was relocated to the Bomas of Kenya (a rondavel-like auditorium that was created to host cultural events), away from Nairobi central business district and an easy location to secure. The election was choreographed as a national cultural event or a public holiday that culminates in the appearance and address by the president. Choirs sang to soothe the anxieties of a nation still smarting from the trauma of the 2007 general election, anxiously awaiting the announcement of the winner, while the electoral body’s commissioners, like members of a cultural troupe, took turns to announce the results.

Yet something was amiss. The biometric voter identification and electronic transmission of results failed. The numbers being beamed on the screen were not adding up; they were not even divisible by a factor that Isaak Hassan, the then chairman of the commission, said was the multiplier. Rejected votes seemed to have been the unnamed candidate in the race. There was no way to verify that the numbers presented by the IEBC truly reflected the will of Kenyan voters.

The result was strategically announced in the middle of the night to give security forces ample time to plan for any form of resistance. As many as 150,000 officers from different armed formations (Kenya Police, GSU, Prisons, Kenya Wildlife) had been mobilised, trained and deployed to secure the 2013 election, though this was not made public.

The coup de grace was delivered through a pys-op that at once painted Raila Odinga as the personification of political violence and harangued him to accept the results of the presidential election, and if he was dissatisfied, to seek judicial redress.

Aggrieved by the results, the Raila-led opposition went to court. The newness of the Supreme Court, the refreshing leadership of Chief Justice Willy Mutunga, a well-known human rights defender, and the court’s new olive green and yellow striped robes and no-wigs-or-bibs attire inspired confidence. However, the judges unanimously disallowed the bulk of the evidence the opposition had hoped would prove its case, citing constitutional time constraints.

The IEBC numbers on the 2013 presidential election, like its voter register, kept changing, and took an extraordinarily long time to finally be posted for public scrutiny. Without a stable register of voters, the “tyranny of numbers” became a self-fulfilling prophecy that no one could test, but a valuable tool for creating and sustaining a perception of invincibility.

The Supreme Court’s own self-initiated process of examining the records of the IEBC failed the integrity test. The court let the IEBC off the hook.

Kenyans had to wait for the 2017 new-look Supreme Court bench to get a glimpse into how the bureaucratic mischief, malfeasance and malice by the IEBC secretariat works to produce winners of presidential elections, and to get a sense of what goes on within secured spaces, away from the public glare, where IEBC clerks verify and tally the results of various polling stations.

The IEBC numbers on the 2013 presidential election, like its voter register, kept changing, and took an extraordinarily long time to finally be posted for public scrutiny. Without a stable register of voters, the “tyranny of numbers” became a self-fulfilling prophecy that no one could test, but a valuable tool for creating and sustaining a perception of invincibility.

August 2017: Robbery with violence

This year’s script was an amalgam of the 2013 and the 2007 experiences. Several reform processes and anxieties around insecurity during elections provided a perfect cover. The locus of the execution of the coup was the IEBC, buoyed by the mantra that no court in Africa has ever nullified a presidential election.

The 8 August 2017 election was preceded by a number of preemptive strategies and strikes, variously aimed at pro-democracy non-governmental organisations and foundations associated with key opposition figures with the aim of incapacitating resistance against the regime. The NGO Coordination Board’s attempts to close down the accounts of the Kalonzo Musyoka Foundation, the Kidero Foundation, and a foundation associated with Rosemary Odinga, Raila’s daughter, fall into this category. Libel laws enacted by the Jubilee government and the creation of a central government advertisement agency also came in handy when manipulating Kenya’s oligopolistic main-street media.

Resistance to an electoral coup was largely expected to rise from the core of Raila Odinga’s constituency and a few human rights and democracy non-governmental organisations. Jubilee went for both with speed once the result had been declared: indiscriminate state violence and attempts to close AFRICOG and the Kenya Human Rights Commission fall into this pattern.

How Jubilee executed this year’s scheme is a classic study on how a coup strategy was interwoven into Kenya’s electoral process and performed through routine acts of government functions, using the very institutions democracy depends on, without rousing suspicion among the citizens. A look at its key aspects demonstrates how an electoral coup works.

The Jubilee campaign, like the one in 2013, was energetic and glitzy. It was largely amplified by the President’s Delivery Unit’s advertisements: “GoK Delivers”; “+254 Tuko na Plus Kibao”; advertisements that claimed that Kenya had registered exceptional achievements in many fields, such as provision of “free” maternity services amidst a protracted strike by health workers. Jubilee made several campaign forays into what were considered swing constituencies or loose pro-opposition strongholds in Kisii, Bugoma, Kajiado and other areas.

If issues do not count in Kenya’s politics, and only ethnicity does, then how could the government improve its electoral chances when the Jubilee government is widely perceived to be dominated mostly by the elite of just two ethnic groups and didn’t even attract any significant symbolic defection of notable ethnic leaders in the run-up to the August 8 election?

Regime-aligned intellectuals, like Misigo Amatsimbi, writing two days before the poll, predicted Jubilee’s victory, complete with the numbers and the expected ethnic shifts in voting patterns. These numbers, expressed in percentage form, bear an uncanny resemblance to the figures IEBC would later disown in court, and variously call “data, provisional text data or statistics”.

Narratives of Jubilee’s victory, mostly by analysts who had simply ignored the confounding figures IEBC was beaming through the public portal, used “data” from secondary sources, used only form 34B, or relied on the incomplete records of the polling station results, the form 34A.

Vowing that Kenya’s presidential election was nothing but an ethnic census, where issues count for little, Misigo used the last census figures to approximate the number of votes that either Raila Odinga or Uhuru Kenyatta would get at varied levels of voter turnout among various Kenyan ethnic groups. In this analysis, Jubilee recorded a remarkable improved performance among the following ethnic groups: Somali, Samburu, Borana, Luhya, Maasai, Kamba and Kisii. Amatsimbi predicted 10.6 million votes (54%) in Uhuru’s first round win against Raila Odinga’s 8.8 million votes (44%). Misigo’s narrative and numbers don’t just add up.

Charles Hornsby had a similar prediction, which was based on a more sophisticated model that was gleefully rehashed by Bitange Ndemo, another regime intellectual, but which curiously sought validation in the hard-to-vouch form 34B after the declaration of the results.

Nor does “the Jubilee inroads into the opposition stronghold” narrative hold water. If issues do not count in Kenya’s politics, and only ethnicity does, then how could the government improve its electoral chances when the Jubilee government is widely perceived to be dominated mostly by the elite of just two ethnic groups and didn’t even attract any significant symbolic defection of notable ethnic leaders in the run-up to the August 8 election?

Infiltration and control of the commission

These numbers served an important role. They conditioned Kenyans to accept a Jubilee victory as something that had been scientifically foretold. They also enabled the narratives of certain victory, which gained currency immediately after the IEBC announced the results.

However, it is now clear that no one, not even the IEBC, could vouch for them. What is more, it is now clear how bureaucratic mischief, malice and malfeasance account for what was previously excused as “human error, fatigue and technological failure,” and how these acts produce presidential victory.

Wafula Chubukati, the chairman of the electoral commission, declared Uhuru Kenyatta the winner of the presidential election without receiving results from a substantial number of polling stations. Why did Chebukati declare the results of the election prematurely when the law allowed a few more days for a thorough job? Why was he waffling, lost in procedure, before declaring the results of the August 8 presidential election?

The Supreme Court found that numerous election return papers, notably form 34 C for the declaration of presidential results, lacked the mandatory security features, which raised suspicions that they could be fake. Why did Ezra Chiloba, the CEO of the IEBC, repeatedly remind Kenyans that the results being beamed through the public portal were results from 288 out of 290 constituencies shortly before the results were declared, only for the IEBC to disown these results as “data, provisional text data, statistics”?

Chiloba also told the BBC that some data entry clerk created an email account in the chairman’s name without the chairman’s knowledge, and used it to conduct about 9,000 transactions in the electoral database. Chiloba’s only regret was that the account was not created under a different (institutional) name. He did not question the ethical issue it raised: Why were these transactions conducted without the knowledge of the chairman? What motive was behind this?

According to the IEBC, in the 8 August election, there were more than 11,000 polling stations that were out of reach of the network coverage of Kenya’s three mobile service providers. However, in the fresh election on 26 October, this number had reduced drastically to only 300. This reduced figure was not accompanied by any report that showed that the mobile phone companies had made massive investments to improve network coverage between the August election date and the election date in October.

IEBC’s conduct reeks of bureaucratic mischief, malice and malfeasance. Chebukati and Akombe’s memos indicating that not everything was above board point to this. There can be no doubt that the IEBC is a compromised institution, infiltrated and controlled by those who control four of the now six commissioners. The devil is in the malicious detail of everyday bureaucratic decisions, procedures, rules and regulations. In the Maina Kiai versus the IEBC case, the Court of Appeal warned the IEBC against this kind of mischief. However, the IEBC’s defiance of court orders points to a compromised institution that enjoys the protection of the powers that be.

Hotspots talk

In the run-up to the August 8 election, claiming to have learnt from history, the Kenya Police, the National Cohesion and Integration Commission and the IEBC mapped, profiled and marked regions that they referred as hotspots. The state mobilised an unprecedented 180,000 officers from various armed formations, over 30 specialised armoured anti-protest vehicles and helicopters for rapid deployment. (Coup plots work best with a mixed force, capable of executing orders as given, but incapable of executing a countercoup.)

At first glance, the list of places labeled hotspots appeared inclusive, it contained both the incumbent’s and the opposition’s strongholds, areas that had experienced political violence in the past general elections. However, some state action told a different story. The police held protest control simulation only in Kisumu and Nairobi. Only Kisumu and Oyugis, both in the opposition stronghold, received body bags, ostensibly as part of first aid kits donated by an NGO. That’s a Kenyan first in the history of first aid.

The lopsided deployment of the armoured vehicles, body bags and rehearsals for protest control told a different story. It suggested a strategy informed by a predetermined electoral outcome, a contest with a known winner and loser, and predictably, where the results of the presidential election would either bring joy or disappointment.

The Supreme Court stood up to something insidious that has been gnawing at the heart of Kenya’s democracy since 2007, something that neither the Johann Kreigler Commission in 2007 nor the Supreme Court in 2013 managed to correct. Unlike Kibaki’s 2007 coup, which unintentionally produced comprehensive reforms, the 2017 plot seeks to upend the 2010 Constitution of Kenya.

Hotspots talk was a camouflage. It provided a perfect cover for an armed repression of protests against the IEBC’s attempt to unconstitutionally and illegally make Uhuru Kenyatta the president of Kenya. Recent human rights reports now confirm that the police may have killed up to 67 people, mostly in opposition strongholds, and especially in urban slums.

Monopolising the narrative

If the violence of an electoral coup looks strikingly similar to that of a classic military coup, then how it monopolises communication in a pluralistic media landscape sets it apart from the latter. In a typical military coup in a state-owned media era, the seizure and control of the only broadcast house more or less guarantees the coup makers a monopoly over the most effective means of communication.

Kenya’s experience suggests that the electoral coup plotters used a markedly different approach to attain the same results. The idea was not so much to seize a broadcast house as it was to dominate the narrative on the critical aspects of the electoral process. This was achieved through various approaches, including intimidation of media houses, ordering broadcasting stations to not announce unofficial presidential results, imposing a reliance on the IEBC “public portal” (the pot of statistics and provisional text data, which the commission itself disowned), and investment in heavily PR-mediated news reporting and analysis.

PR spins

The PR spin on the results was remarkable. As Wandia Njoya pointed out, in reporting the results, the burden of proof was put on the opposition to “substantiate the claims”, not on the IEBC, the principal author of the confounding statistics, to explain the anomalies and irregularities, the processes, and the missing polling station data (forms 34A). Any coverage that deflected attention away from the IEBC was welcome. Favourable observer reports were amplified, while those critical of the process were suppressed.

The Cabinet Secretary in charge of communication and the government’s communication authority repeatedly warned Kenya’s “main-street” media against broadcasting unofficial results and threatened sanctions on any media house that would dare to broadcast them. These directives of questionable legal basis had one effect: they allowed the government to control the narratives on the election. Moreover, the government raided the opposition parallel vote-tallying center in Nairobi. This was an attempt to neutralise any competing source of information and make the citizenry dependent on the only one source of information, the one controlled by the compromised electoral commission.

Rollback of reforms

Whether or not the Supreme Court upheld or annulled the results of the August 8 presidential election, Kenya’s democracy was damned either way. The judicial coup would inevitably be followed by an electoral counter-coup.

The Supreme Court stood up to something insidious that has been gnawing at the heart of Kenya’s democracy since 2007, something that neither the Johann Kreigler Commission in 2007 nor the Supreme Court in 2013 managed to correct. Unlike Kibaki’s 2007 coup, which unintentionally produced comprehensive reforms, the 2017 plot seeks to upend the 2010 Constitution of Kenya.

The Court exposed the Jubilee government’s attempt to rewrite the Kibaki plot, whose ambition included the control of all centres of power that check the presidency. Momentarily, the court had wrong-footed a well laid-out coup plot whose full scope will, hopefully, become clearer once the unprecedented 300 election petitions filed against various candidates in the just concluded general election, especially those from the “inroad” constituencies, are determined.

A weird reversal of aspirations seems afoot. The government has created an incumbent-friendly electoral commission. It only awaits presidential ascent or tweaking to take care of any contingency, for example, the resignation of its chairman. If this becomes law, it will institutionalise all the IEBC’s bureaucratic mischief, malfeasance and malice that led to the annulment of the August 8 presidential election.

By Akoko Akech
Akoko Akech, presently a graduate student at the Makerere Institute of Social Research, was the program officer in charge of the Society for International Development (SID-East Africa) and Institute for Development Studies’ book project, Karuti Kanyinga and Duncan Okello (eds.,) Tensions and Reversals in Democratic Transition: Kenya’s 2007 General Election, and the Working Paper Series on the Constitution of Kenya, 2010.  

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Akoko Akech is a graduate student at the Makerere Institute of Social Research, presently living in Kisumu.

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Politics

It’s a Nurses’ Market Out There, and Kenyans Are Going For It

Nurses are central to primary healthcare and unless Kenya makes investments in a well-trained, well supported and well-paid nursing workforce, nurses will continue to leave and the country is unlikely to achieve its Sustainable Development Goals in the area of health and wellbeing for all.

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It’s a Nurses’ Market Out There, and Kenyans Are Going For It
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Nancy* is planning to leave Kenya. She wants to go to the United States where the nursing pastures are supposedly greener. I first met Nancy when the country was in the throes of the COVID-19 pandemic that tested Kenya’s healthcare system to breaking point. She was one of a cohort of recently graduated nurses that were hastily recruited by the Ministry of Health and thrown in at the deep end of the pandemic. Nancy earns KSh41,000 net with no other benefits whatsoever, unlike her permanent and pensionable colleagues.

When the then Labour and Social Protection Cabinet Secretary Simon Chelugui announced in early September 2021 that the government would be sending 20,000 nurses to the United Kingdom to help address the nursing shortage in that country, Nancy saw her chance. But her hopes were dashed when she failed to raise the KSh90,000 she needed to prepare and sit for the English language and nursing exams that are mandatory for foreign-trained nurses. Nancy would also have needed to pay the Nursing Council of Kenya KSh12,000 for the verification of her documents, pay the Kenya Medical Training College she attended KSh1,000 in order to get her exam transcripts, and apply for a passport, the minimum cost of which is KSh4,550 excluding the administrative fee. Nancy says that, contrary to then Health Cabinet Secretary Mutahi Kagwe’s disputed claims that a majority of applicants to the programme had failed the English language test, most nurses simply could not afford the cost of applying.

Of the targeted 20,000 nurses, the first 19 left Kenya for the UK in June 2022. But even that paltry figure represents a significant loss for Kenya, a country where the ratio of practicing nurses to the population is 11.66 per 10,000. The WHO considers countries with less than 40 nurses and midwives for every 10,000 people to not have enough healthcare professionals. Nearly 60 per cent of all healthcare professionals (medical physicians, nursing staff, midwives, dentists, and pharmacists) in the world are nurses, making them by far the most prevalent professional category within the health workforce. Nurses offer a wide range of crucial public health and care services at all levels of healthcare facilities as well as within the community, frequently serving as the first and perhaps the only healthcare provider that people see.

Kenya had 59,901 nurses/midwives in 2018, rising to 63,580 in 2020. Yet in 2021, Kenya was proposing to send almost a third of them to the UK to “address a shortfall of 62,000 in that country”.

The growing shortage of nurses in the UK has been blamed on the government’s decision to abolish bursaries and maintenance grants for nursing students in 2016, leading to a significant drop in the number of those applying to train as nurses. Consequently, the annual number of graduate nurses plummeted, reaching the current low of 31 nurses per 100,000 people, below the European average of 36.6 and half as many as in countries like Romania (96), Albania (82) and Finland (82). Facing pressure to recruit 50,000 nurses amid collapsing services and closures of Accident & Emergency, maternity and chemotherapy units across the country, the UK government decided to once again cast its net overseas. Established in 1948, the UK’s National Health Service (NHS) has relied on foreign healthcare workers ever since staff from the Commonwealth were first brought in to nurse back to health a nation fresh out of the Second World War.

The UK government’s press release announcing the signing of the Bilateral Agreement with Kenya states that the two countries have committed  “to explore working together to build capacity in Kenya’s health workforce through managed exchange and training” and goes as far as to claim that “with around only 900 Kenyan staff currently in the NHS, the country has an ambition to be the ‘Philippines of Africa’ — with Filipino staff one of the highest represented overseas countries in the health service — due to the positive economic impact that well-managed migration can have on low to middle income countries.”

It is a dubious ambition, if indeed it has been expressed. The people of the Philippines do not appear to be benefiting from the supposed increase in capacity that the exchange and training is expected to bring. While 40,000 of their nurses worked in the UK’s National Health Service last year, back home, according to Filipino Senator Sonny Angara, “around 7 of 10 Filipinos die without ever seeing a health professional and the nurse to patient ratio in our hospitals remains high at 1:50 up to 1:802”.

Since 2003 when the UK and the government of the Philippines signed a Memorandum of Understanding on the recruitment of Filipino healthcare professionals, an export-led industry has grown around the training of nurses in the Philippines that has attracted the increased involvement of the private sector. More nursing institutions — that have in reality become migrant institutions — are training nurses specifically for the overseas market, with the result that skills are matched to Western diseases and illnesses, leaving the country critically short of healthcare personnel. Already, in 1999, Filipino doctors had started retraining as nurses and leaving the country in search of better pay.

It is difficult, then, to see how the Philippines is an example to emulate. Unless, of course, beneath the veneer of “partnership and collaboration in health”, lies the objective of exporting Kenyan nurses with increased diaspora remittances in mind – Kenyans in the UK sent KSh28.75 billion in the first nine months of 2022, or nearly half what the government has budgeted for the provision of universal health care to all Kenyans. If that is the case, how that care is to be provided without nurses is a complete mystery.

Already in 1999, Filipino doctors had started retraining as nurses and leaving the country in search of better pay.

For the UK, on the other hand, importing nurses trained in Kenya is a very profitable deal. Whereas the UK government “typically spends at least £26,000, and sometimes far more, on a single nurse training post”, it costs only £10,000 to £12,000 to recruit a nurse from overseas, an externalization of costs that commodifies nurses, treating them like goods to be bought and sold.

However, in agreeing to the terms of the trade in Kenyan nurses, the two governments are merely formalizing the reality that a shortage of nurses in high-income countries has been driving the migration of nurses from low-income countries for over two decades now. Along with Ghana, Nigeria, South Africa and Zimbabwe, Kenya is one of the top 20 countries of origin of foreign-born or foreign-trained nurses working in the countries of the OECD, of which the UK is a member state.

Faced with this reality, and in an attempt to regulate the migration of healthcare workers, the World Health Assembly adopted the WHO Global Code of Practice on the Recruitment of Health Personnel in May 2010. The code, the adherence to which is voluntary, “provides ethical principles applicable to the international recruitment of health personnel in a manner that strengthens the health systems of developing countries, countries with economies in transition and small island states.”

Article 5 of the code encourages recruiting countries to collaborate with the sending countries in the development and training of healthcare workers and discourages recruitment from developing countries facing acute shortages. Given the non-binding nature of the code, however, and “the severe global shortage of nurses”, resource-poor countries, which carry the greatest disease burden globally, will continue to lose nurses to affluent countries. Wealthy nations will inevitably continue luring from even the poorest countries nurses in search of better terms of employment and better opportunities for themselves and their families; Haiti is on the list of the top 20 countries supplying the OECD region.

“Member States should discourage active recruitment of health personnel from developing countries facing critical shortages of health workers.”

Indeed, an empirical evaluation of the code four years after its adoption found that the recruitment of health workers has not undergone any substantial policy or regulatory changes as a direct result of its introduction. Countries had no incentive to apply the code and given that it was non-binding, conflicting domestic healthcare concerns were given the priority.

The UK’s Department of Health and Social Care (DHSC) has developed its own code of practice under which the country is no longer recruiting nurses from countries that the WHO recognizes as facing health workforce challenges. Kenya was placed on the UK code’s amber list on 11 November 2021, and active recruitment of health workers to the UK was stopped “with immediate effect” unless employers had already made conditional offers to nurses from Kenya on or before that date. Presumably, the Kenyan nurses who left for the UK in June 2022 fall into this category.

In explaining its decision, the DHSC states that “while Kenya is not on the WHO Health Workforce Support & Safeguards List, it remains a country with significant health workforce challenges. Adding Kenya to the amber list in the Code will protect Kenya from unmanaged international recruitment which could exacerbate existing health and social care workforce shortages.”

The WHO clarifies that nothing in its Code of Practice should be interpreted as curtailing the freedom of health workers to move to countries that are willing to allow them in and offer them employment. So, even as the UK suspends the recruitment of Kenyan nurses, they will continue to find opportunities abroad as long as Western countries continue to face nurse shortages. Kenyan nurses will go to the US where 203,000 nurses will be needed each year up to 2026, and to Australia where the supply of nursing school graduates is in decline, and to Canada where the shortage is expected to reach 117,600 by 2030, and to the Republic of Ireland which is now totally dependent on nurses recruited from overseas and where working conditions have been described as “horrendous”.

“Adding Kenya to the amber list in the Code will protect Kenya from unmanaged international recruitment which could exacerbate existing health and social care workforce shortages.”

Like hundreds of other Kenyan-trained nurses then, Nancy will take her skills overseas. She has found a recruitment agency through which to apply for a position abroad and is saving money towards the cost. She is not seeking to move to the UK, however; Nancy has been doing her research and has concluded that the United States is a much better destination given the more competitive salaries compared to the UK where nurses have voted to go strike over pay and working conditions. When she finally gets to the US, Nancy will join Diana*, a member of the over 90,000-strong Kenyan diaspora, more than one in four of whom are in the nursing profession.

Now in her early 50s, Diana had worked for one of the largest and oldest private hospitals in Nairobi for more than 20 years before moving to the US in 2017. She had on a whim presented her training certificates to a visiting recruitment agency that had set up shop in one of Nairobi’s high-end hotels and had been shortlisted. There followed a lengthy verification process for which the recruiting agency paid all the costs, requiring Diana to only sign a contract binding her to her future US employer for a period of two years once she had passed the vetting process.

Speaking from her home in Virginia last week, Diana told me that working as a nurse in the US “is not a bed of roses”, that although the position is well paying, it comes with a lot of stress. “The nurse-to-patient ratio is too high and the job is all about ticking boxes and finishing tasks, with no time for the patients,” she says, adding that in such an environment fatal mistakes are easily made. Like the sword of Damocles, the threat of losing her nursing licence hangs over Diana’s head every day that she takes up her position at the nursing station.

“The nurse-to-patient ratio is too high and the job is all about ticking boxes and finishing tasks, with no time for the patients.”

Starting out as an Enrolled Nurse in rural Kenya, Diana had over the years improved her skills, graduating as a Registered Nurse before acquiring a Batchelor of Science in Nursing from a top private university in Kenya, the tuition for which was partially covered by her employer.

Once in the US, however, her 20 years of experience counted for nothing and she was employed on the same footing as a new graduate nurse, as is the case for all overseas nurses moving to the US to work. Diana says that, on balance, she would have been better off had she remained at her old job in Kenya where the care is better, the opportunities for professional growth are greater and the work environment well controlled. But like many who have gone before her, Diana is not likely to be returning to Kenya any time soon.

*Names have been changed.

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Politics

Why Azimio’s Presidential Petition Stood No Chance

In so far as the court had nullified the 2017 elections, the evidential threshold required for any subsequent electoral nullification was going to be substantially high for any petitioner.

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Even before the 9 August general election, it was expected that the loser of the Kenyan presidential contest would petition the Supreme Court to arbitrate over the outcome. Predictably, the losing party, Azimio La Umoja-One Kenya Coalition, petitioned the court to have William Ruto’s win nullified on various procedural and technical grounds. Azimio’s case was predicated on, among others, three key allegations. First, that William Ruto failed to garner the requisite 50 per cent plus one vote. Second, that the Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati had announced the outcome without tallying and verifying results from seven constituencies. Finally, that the commission could not account for 250,000 votes that were cast electronically.

As we know, Azimio lost the case as the judges dismissed all the nine petitions that the party had filed, unanimously finding that William Ruto had won fairly.

Adjudicating electoral fallouts

Since its inception in 2010, the Supreme Court has played a decisive role in adjudicating fallouts linked to contentious presidential politics in Kenya, with the court deliberating on the outcome of three out of the four presidential elections held after its inauguration. Prior to this, the losing party had no credible institutional mechanism of redress and electoral disputes were generally resolved through mass political action (as in 2007) or consistent questioning of the legitimacy of the winner (as in 1992 and 1997).

The Supreme Court’s presence has, therefore, been crucial in providing losers with an institutionalised mechanism to channel dissent, with the court operating as a “safety valve” to diffuse political tensions linked to presidential elections. It is, hence, impossible to conceive of the relatively peaceful elections held in 2013, 2017 and 2022 without the Supreme Court whose mere presence has been key in discouraging some of the more deadly forms of political rivalry previously witnessed in Kenya.

Relentless petitioning

While the Azimio leadership were right to petition the court in the recent election, first because this successfully diffused the political tensions among their supporters, and second because the court was expected to provide directions on IEBC conduct in future elections, it was clear that Raila Odinga’s relentless petitioning of the court in the previous two elections, and the nullification of the 2017 elections, was in essence going to be a barrier to a successful petition in 2022.

In so far as the court had nullified the 2017 elections, the evidential threshold required for any subsequent electoral nullification was going to be substantially high for any petitioner. The relentless petitioning of the court and the nullification of the 2017 elections had in essence raised the bar for the burden of proof, which lay with the petitioner(s) and, therefore, reduced the probability of a successful petition.

The Supreme Court’s presence has been crucial in providing losers with an institutionalised mechanism to channel dissent.

The reason for this is both legal and political. Legal in the sense that the IEBC is expected to conduct the elections under the law, which, among other issues, requires that the electoral process be credible and the results verifiable before any certification is made, otherwise the election is nullified, as was the case in 2017. It is political because the power to select the president is constitutionally, hence politically, delegated to the Kenyan people through the ballot, unless electoral fraud infringes on this, again as was the case in 2017.

The court in its deliberation must, therefore, balance the legal-political trade-off in its verdict in search of a plausible equilibrium. For instance, while the majority of Azimio supporters had anticipated a successful petition based on the public walkout and dissent by the four IEBC commissioners, it seems that the decision to uphold the results displayed the court’s deference to political interpretation of the law by issuing a ruling that did not undermine the Kenyan voters’ right to elect their president.

While the settlement of legal-political disputes by a Supreme/Constitutional court is a common feature across democracies, and continuously being embedded in emerging democracies like Kenya, it does seem that in this election, the political motivations for upholding the vote outweighed the legal motivations for nullifying it. In essence, the court demonstrated its institutional independence by ruling against the Kenyatta-backed Azimio candidate due to insufficient evidence.

Supreme Court power grab 

A counterfactual outcome where the evidential threshold for the nullification of presidential results is low would foster a Supreme Court power grab, in lieu with the 2017 nullification, by marginalising the sovereign will of Kenyans to elect their president.

In many ways, nullification of the results would also have incentivised further adversarial political behaviour where every electoral outcome is contested in the Supreme Court even when the outcome is relatively clean, as in the case of the 2022 elections.

It is this reason (among others) that we think underlined the Supreme Court justices’ dismissal of Azimio’s recent petition. The justices ultimately dismissed the evidence presented by the petitioners as “hot air, outright forgeries, red herring, wild goose chase and unproven hypotheses”, setting a clear bar for the standard of evidence they expect in order to deliberate over such an important case in the future.

In essence, the court demonstrated its institutional independence by ruling against the Kenyatta-backed Azimio candidate due to insufficient evidence.

Since the earth-shaking nullification of the 2017 elections, the Supreme Court transcended an epoch, more political than legal by “invading” the sovereign space for Kenyans to elect their president, thereof setting a precedence that any future successful petition to contest a presidential election requires watertight evidence.

In a sense, Azimio were victims of Odinga’s judicial zealotry and especially the successful 2017 petition. In so far as the evidence submitted to the Supreme Court by Azimio in 2022 was at the same level or even lower than the 2017 base, their case at the Supreme Court was very likely to be dismissed and even ridiculed as the justices recently did.

The precedent set by the 2022 ruling will, actually, yield two positive political outcomes. First, it will in the future weed out unnecessary spam petitions that lack evidence and rather increase needless political tensions in the country. Second, it has signalled to future petitioners, that serious deliberations will only be given to petitions backed by rock-solid evidence.

Missed opportunity

From the recent ruling, it is evident that the judgement fell far below the precedent set in 2017. The 2017 Supreme Court ruling that the IEBC should make the servers containing Form 34A publicly available, was crucial in improving the credibility of the 2022 elections, by democratising the tallying process. At a minimum, the expectation was that the justices would provide a directive on the recent public fallout among the IEBC commissioners with regard to future national tallying and announcement of presidential results.

By dismissing the fallout as a mere corporate governance issue, the justices failed to understand the political ramifications of the “boardroom rupture”. What are we to do in the future if the IEBC Chair rejects the results and the other commissioners validate the results as credible?

Additionally, by ridiculing the petitioners as wild goose chasers and dismissing the evidence as “hot air”, the justices failed to maintain the amiable judicial tone necessary to decompress and assuage the bitter grievances among losers in Kenya high-octane political environment.

In a sense, Azimio were victims of Mr Odinga’s judicial zealotry and especially the 2017 successful petition.

The Supreme Court ought to resist the temptations of trivializing electoral petitions, as this has the potential of triggering democratic backsliding, where electoral losers might opt for extra-constitutional means of addressing their grievances as happened in December 2007. It is not in the petitioners’ place to ascertain whether their evidence is “hot air” or not, but for the court to do so, and in an amiable judicial tone that offers reconciliation in a febrile political environment.

The precedent set by the 2017 ruling that clarified the ambiguities related to the IEBC’s use of technology to conduct elections, set an incremental pathway towards making subsequent elections credible and fair, and increased public trust in the key electoral institutions in Kenya.

The justices, therefore, need to understand that their deliberations hold weight in the public eye and in the eyes of political leaders. Therefore, outlining recommendations to improve the IEBC’s conduct in future elections is a bare minimum expectation among Kenyans. In this case, while they provided some recommendations, they failed to comprehensively address the concerns around the walk-out by the four IEBC commissioners.

At the minimum, chastising the IEBC conduct was necessary to consolidate the electoral gains made thus far but also recalibrate institutional imperfections linked to how elections are to be conducted and, especially, contestations around the role of the commissioners in the national tallying of results in the future.

This article is part of our project on information and voter behaviour in the 2022 Kenyan elections. The project is funded by the Centre for Governance and Society, Department of Political Economy, King’s College London.

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Politics

GMOs Are Not the Only Answer

In a country where agricultural production is dominated by smallholders, the decision to allow genetically modified crops and animal feeds into Kenya as a means of combatting perennial hunger ignores other safer and more accessible alternatives such as Conservation Agriculture.

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Newly elected President William Ruto has, to use a much abused expression, hit the ground running. I am, however, not certain that he is running in the right direction. On 3 October 2022, during the second meeting of his recently (and unconstitutionally) constituted cabinet, Ruto announced that his government had authorized the cultivation and importation of genetically modified crops and animal feeds, sweeping aside the grave concerns raised by Kenyans and lifting a ten-year ban with the stroke of a pen.

The decision was made at a time when Kenya is facing the worst drought in four decades that has left over four million people facing starvation. According to President Ruto, the adoption of GMOs is the solution to the recurring cycles of drought and famine that Kenyans have been increasingly experiencing.

I shall not go into the merits and demerits of what some call Frankenfoods here. However, it seems to me that Ruto’s decision is driven solely by the political imperative to bring down the price of maize through cheap imports of GM maize following the withdrawal of the maize subsidy.

Already, back in November 2018, the Route to Food Initiative (RTFI), the Kenya Biodiversity Coalition (KBioC), the Africa Biodiversity Network (ABN) and Greenpeace Africa had issued a joint statement raising “concerns over recent disconcerting developments in the country, that [suggest] the Government has made [a] unilateral decision to adopt genetically modified crops”, and adding that “an all-inclusive nationwide discourse through public participation, which addresses whether the technology is appropriate for us, is being circumvented”.

The group also voiced their suspicion that the report of the Task Force to Review Matters Relating to Genetically Modified Foods and Food Safety that was set up by the Ministry of Health in 2013 was being withheld because it was against the adoption of GM foods. This suspicion may well be founded since, in making the announcement, State House said that the decision to lift the GMO ban was “made in accordance with the recommendation of the Task Force”, while failing to make the so-called Thairu report—which was submitted in 2014—available for public scrutiny.

The cabinet said that in reaching its decision to lift the ban it had also referred to reports of the European Food Safety Authority, among others.

The European Union’s policy on GMOs “respects the right-to-know by ensuring clear labelling and traceability of GMOs. This requires reliable methods for the detection, identification and quantification (for authorised GMO) in food, feed, and the environment”. There is zero tolerance for unapproved GMOs and stringent regulation of products originating from or containing GMOs.

A detailed risk analysis and the availability of a validated method for locating, identifying, and quantifying GMOs in food or feed are prerequisites for authorization. For any GM launch, biotech businesses that want to market their product in the EU must submit an application. A very precise way of detecting each unique GMO is included in the application dossier.

The terms of reference of the government’s GMO task force included, among others, assessing Kenya’s infrastructural capacities to monitor genetically modified products in the country; assessing the adequacy of qualified human resource capacity to monitor research, use and importation of genetically modified products into the country; and recommending approval procedures for imports of GM foods.

If we are to look only at the procedures established by the National Biosafety Authority for the importation of GM products into the country, then we may conclude that Kenya lacks the infrastructural and qualified human resource capacity to monitor their research, use and importation. In effect, an entity wishing to import a GM product into the country is merely required to provide the particulars of the supplier, the nomenclature of the GMO, proof that the GMO has been registered in the exporting country, its use in the country of origin, its intended use in Kenya, a summary risk assessment, methods and plans for safe handling, storage, transport and use, and the emergency response foreseen in the event of an accident with the GMO. The second of the two-page the application document is reserved for the applicant’s signature before a commissioner for oaths, a magistrate or a judge. Means of detection of GMOs are not mentioned.

It would seem then that Ruto’s government has fully devolved the responsibility for Kenya’s biosafety and biosecurity to the authorities of foreign nations. This is very frightening when you consider, for example, that the European Union Regulation EC304/2003 allows EU companies to produce and export to other countries pesticides that are banned or restricted in the EU. This double standard is the reason why active ingredients which have been withdrawn in the EU find their way to Kenya, poisoning our bodies and our environment, and destroying our biodiversity.

Maize is not the only ugali

The lifting of the ban on GMOs may have sounded the death knell for Kenyan small-scale maize growers; GM maize is to be found on the international markets at prices that defy all competition, which will now prove to be a boon for well-connected maize-importing cartels.

But maize, a staple in the majority of Kenyan households, is a relatively recent arrival on our national menu, becoming a major staple during the First World War when disease in millet led to famine.

As Noel Vietmeyer observes in the foreword to the first volume of Lost Crops of Africa,

“Lacking the interest and support of the authorities (most of them non-African colonial authorities, missionaries, and agricultural researchers), the local grains could not keep pace with the up-to-the-minute foreign cereals, which were made especially convenient to consumers by the use of mills and processing. The old grains languished and remained principally as the foods of the poor and the rural areas. Eventually, they took on a stigma of being second-rate. Myths arose—that the local grains were not as nutritious, not as high yielding, not as flavorful, nor as easy to handle. As a result, the native grains were driven into internal exile. In their place, maize, a grain from across the Atlantic, became the main food from Senegal to South Africa.”

But with initiatives such as the Busia County Biodiversity Policy, which recognises the role that biodiversity can play in addressing food insecurity, the tide is turning and Kenyans are rediscovering and embracing the culinary habits of our forebears. You would think then that the GMO decision will not, in the main, affect the choices we make in the foods we consume. That those of us a tad squeamish about eating foods that have been genetically interfered with can opt out.

Were it that simple.

Many Kenyans are unaware that the Seed and Plant Varieties Act Cap 326 of 2012 prohibits farmers from sharing, exchanging or selling uncertified and unregistered seeds. Yet, to mitigate against the effects of perennial droughts and the escalating costs of hybrid seeds, community seed banks have been conserving indigenous seeds—that are demonstrably more climate-resilient—for sale during the planting season, in contravention of the law and at the risk of a one million shilling fine, or two years’ imprisonment, or both. Criminalising a system through which small-scale farmers acquire 90 per cent of their planting material does not augur well for Kenya’s food security, or for our biodiversity. Small-scale farmers are fighting back, however, with a group from Machakos recently going to court to challenge the legislation. It remains to be seen who between David and Goliath will prevail.

But maize, a staple in the majority of Kenyan households, is a relatively recent arrival on our national menu, becoming a major staple during the First World War when disease in millet led to famine.

What is clear is that Kenya’s David, while remaining impoverished over the decades since independence, is the mainstay of the country’s agriculture in terms of productivity. The Economic Survey (2021) of the Kenya National Bureau of Statistics reports that,

“The share of marketed agricultural output for small farms increased marginally to 73.3 per cent in 2020. This is a reflection of the continued dominance of the smallholder sector in the marketing of agricultural produce during the year under review. The value of sales through small farms increased by 9.4 per cent from KSh 341.4 billion in 2019 to KSh 373.6 billion in 2020. Similarly, the value of sales by large farms increased by 8.9 per cent from KSh 125.0 billion in 2019 to KSh 136.1 billion in 2020.”

The survey defines large farms as those above 20 hectares.

The small-holder has consistently outperformed the large-scale farmer despite government policies that have since the 70s viewed smallholders as without agency beyond adopting technologies that are presented as capable of transforming agriculture and building livelihoods. The adoption of GMOs is likely to be yet another of these technologies that, together with unjust seed legislation, will increase rather than decrease Kenya’s food insecurity.

President Ruto worries about food insecurity but fails to consider the very ready solution available to his administration and recommended in the Agricultural Policy (2021) of the Ministry of Agriculture, Livestock, Fisheries and Cooperatives, namely, conservation agriculture.

The Food and Agriculture Organisation (FAO – also quoted in Ruto’s decision to lift the GMO ban) recommends conservation agriculture as it is a sustainable system of production that conserves and enhances natural resources; enhances biodiversity; assists in carbon sequestration; is less labour and fertilizer intensive; improves the health of soils; and increases yields over time.

Criminalising a system through which small-scale farmers acquire 90 per cent of their planting material does not augur well for Kenya’s food security, or for our biodiversity.

The very promising results obtained among the small-scale farmers that have adopted the system following training under the FAO beginning in 2015 show that the government would do well to promote conservation agriculture among smallholders as a means of mitigating both against food insecurity and the effects of climate change, rather than hastily reaching for GM technologies that the country is ill-equipped to safely handle.

But clearly, the president is not on the same page as his Ministry of Agriculture and so, like others, I can only conclude that Ruto’s lifting of the GMO ban is for the benefit of the seed multinationals and their clients, the large-scale farmers who have taken over most of the productive land to grow cash crops for export, leaving small-scale farmers to exploit marginal lands for the production of food crops for local consumption. And for the benefit of maize-importing cartels.

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